Corresponding Author: Noorul Huda Sahari, Academy of Contemporary Islamic Studies, Universiti Teknologi MARA, 40450 Shah Alam, Malaysia. Email: nooru088@uitm.edu.my 20 International Journal of Business and Management 6 (1): 20-26, 2022 e-ISSN: 2590-3721 © RMP Publications, 2022 DOI: 10.26666/rmp.ijbm.2022.1.4 Facilitating the Division of Matrimonial Property (Harta Sepencarian) through Hibah in Malaysian Shariah Court Noorul Huda Sahari, Siti Khadijah Ab Manan, Rafeah Saidon, Amal Hayati Ishak Academy of Contemporary Islamic Studies, Universiti Teknologi MARA, 40450 Shah Alam, Malaysia Abstract: Distribution of matrimonial assets or assets between spouses is often associated with unfairness to one of the parties, especially to the non-working wife. This is due to the fact that the current provision on the distribution of matrimonial assets emphasizes the contribution of the parties involved as the sole criteria in determining the proportion of their share. Though the law has not been amended to address this issue, it is observed that a transfer of ownership through hibah for the benefit of family members during marriage provides an alternative to the fairer distribution of matrimonial assets. Therefore, this study is undertaken to examine the applicability of hibah in dividing the assets through court practices. For that purpose, the study adopts a qualitative method which involves an analysis of unreported cases within the time frame of 2000-2012 collected from six zones representing Syariah Courts in Malaysia where analysis is made based on several variables such as types of matrimonial property, factors for consideration and proportion of distribution of the assets. Based on that sampling it has been discovered that the application of hibah in the division of matrimonial assets in the majority of cases is practically settled by way of sulh (amicable settlement). Ownership transfer of matrimonial assets especially through hibah could possibly serve in the best interest of the children and their needs as well as providing adequate security for the spouse. This has been successfully practiced in a polygamous marriage where a study shows that one party (husbands) are in fact more generous in dividing the assets, especially when dealing with the interests of their children. There were also cases where the husband was willing to transfer all assets to the existing wife which is rarely achieved in another litigation process. Thus, this study suggests that the hibah mechanism could be upgraded as law and to be widely practiced when dealing with the division of matrimonial assets. Key words: Division, Hibah, Harta sepencarian, Malaysia Shariah Court INTRODUCTION Matrimonial assets or harta sepencarian generally refer to any property acquired during a marriage. Under Islamic Family Law Acts and Enactments, it is defined in the interpretation section. According to Section 2 of the Islamic Family Enactment (Selangor), 2003, (hereinafter referred to as the Islamic Family Law), harta sepencarian is interpreted as property jointly acquired by husband and wife during their subsistence of marriage according to Hukum Syarak. Section 122 of the same Act. It provides a specific provision on the division of matrimonial assets or harta sepencarian in Selangor. The provision requires the court to consider the contribution of all parties in acquiring the assets, interests of minor children, and debt of spouse in determining the share. The law and practice of division of matrimonial assets in the Shariah court emphasize the contribution of parties as to the sole criteria in determining the proportion of shares in the acquisition of assets. It is noted that the provision relating to the distribution of matrimonial assets in Malaysian Shariah Courts is considered unpractical and does not complement the actual mode of division of assets which is solely based on the contribution of said parties. The provision should focus on distributing the assets on a fair and equitable basis and should address the holistic needs of all parties involved. Though the law has not been amended to address the issue, it is observed that a transfer of ownership through hibah for the benefits of family members during marriage provides an alternative to a fairer distribution of matrimonial assets. In order to protect and safeguard the interest of the existing wife in regards to the matrimonial assets from dissipating to the other party, the newly embodied law empowers the court to divide the existing matrimonial assets upon the application for permission of polygamous marriage. The division is subjected to the principle of division embodied in section 122 of Islamic Family Law which requires the court to consider several factors including